Sweeting v. American Knife Co.

The claimant was employed in the grinding department of the American Knife Company. The explosion of an emery wheel destroyed the bridge of his nose, giving him what is commonly called a flat nose, with deep scars upon his face. The state industrial commission made an -award of $2,500 for serious facial disfigurement. Subdivision 3 of section 15 of the Workmen’s Compensation Law (Cons. Laws, chap. 67) (as amended in 1916) provides that “ in case pf an injury resulting in serious facial or head disfigurement the commission may in its discretion, make such award or compensation as it may deem proper and equitable, in view of the nature of the disfigurement, but not to exceed $3,500.” The employer and the insurance carrier insist that this provision of the statute is unconstitutional and void.

The argument is that the purpose of the amendment is to compensate the workman for injuries that have no relation to his earning power. If that were in truth the purpose, the statute. would still be valid (Matter of Erickson v. Preuss, 223 N. Y. 365 ). The Constitution (Art. 1, section 19) authorizes the adoption of a system of insurance to compensate employees for injuries without regard to fault. Insurance against pain of mind and body is as legitimate, if the amount is kept within the bounds of moderation, as insurance against loss of earn

The statute would stand, therefore, though facial disfigurement were unrelated to loss of earnings. But in truth it is related, and so the legislature must have found. One cannot defeat a statute by a presumption that in its enactment the truths of life have been ignored. The presumption is, on the contrary, that they have been perceived and heeded. But one of the. truths of life is that serious facial disfigurement has a tendency to impair the earning power of its victims. In some callings it would rule out altogether an applicant for employment. In most it would put him at a disadvantage when placed in competition with others. There may, of course, be individual instances of disfigurement without impairment of earning power. That is true also. where there has been the loss of a finger or a foot or an eye. Lawmakers framing legislation must deal with general tendencies. The average and not the exceptional case determines the fitness of the remedy.

The argument is made, however, that the findings ■are defective. If the purpose of the statute is to compensate for loss of earnings, there should be a finding, it is said, that the result of the claimant’s disfigurement will be diminished earning power. One might as well

There is nothing in the point that the extent of compensation must be determined by a jury. The Constitution authorizes “ the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation ” (Constitution, art. 1, sec. 19). The award is not redress for a tort. It is an allotment to an insured workman of his proportion of a fund maintained for his insurance (Mountain Timber Co. v. Washington, supra, at p. 235 ). Nor does the statute become invalid because the commission has some discretion in fixing the amount. The legislature may provide for such a method of “ adjustment, determination and settlement ” as it will. There is reason for the

The statute is constitutional, and the proceedings under it have been regular.

The order should be affirmed with costs.

I concur in the result. The compensation awarded to the employee under the Workmen’s Compensation Law is based on loss of earning power. An allowance for serious facial or head disfigurement so far as such disfigurement has no relation to disability, is an anomaly. (Matter of Marhoffer v. Marhoffer, 220 N. Y. 543 .) The language of the opinion in the Erickson Case ( 223 N. Y. 365 -368), "The commission may now make an award for serious facial or head disfigurement, even though such disfigurement does not diminish or impair the earning capacity of the claimant,” is unnecessarily broad and might have been limited to the language of the act itself, which does not include the words italicized.

Doubtless the general language of the New York Constitution (Art. 1, sec. 19) would permit us to uphold

Serious facial or head disfigurement may leave one able to work and unable to get work. Employers might refuse to employ a disfigured man in his trade either from lack of confidence in his unimpaired ability or because it would be unpleasant for others to work beside him or unprofitable to have him meet the customers. A woman whose hah had been torn off or whose face was badly scarred might be so repulsive to the eye that no one would employ her and yet be as competent as ever to do her work. In a lesser degree, the seriously disfigured face or head of a man might lead to discrimination against him. The House of Lords in Ball v. Hunt & Sons ([1912] A. C. 496), upholding an award for such injuries,'said: “ The injury for which the statute gives compensation is not mutilation or disfigurement or loss of physical power, but loss or diminution of the capacity to earn wages.” The New York statute, by mentioning facial injuries, merely makes plain what the English act leaves to interpretation. If this award for disfigurement is placed on the broad ground of impaired ability to get work, no violence is done to the purpose of the act. In the absence of a finding of fact negativing such impaired ability on the facts in this case, the award should be sustained. (W. C. L. § 21.) The order should be affirmed, with costs.

Order affirmed.